What is the Data Protection Act 2018?
A look at the UK's national data laws and how GDPR fits into the puzzle
The Data Protection Act 2018 is the UK's third generation of laws governing the collection and use of personal data. Having received royal assent on 23 May 2018, it's designed to modernise data protection laws to account for new innovations and digital platforms that continually expand the scope of data collection.
The DPA 2018 establishes a framework for the regulation of data use in the UK and replaces the previous Data Protection Act 1998. The act covers a broad spectrum of data policies, but its primary purpose is to empower data subjects with new tools to protect their information and help them hold organisations to account.
The act also works to supplement the regulatory oversight provided by the General Data Protection Regulation (GDPR), which came into force on 25 May 2018, by extending into areas not otherwise covered by the EU law. It's important to note that the DPA 2018 does not implement GDPR, as the latter automatically applies to the UK as an EU member state. However, the act does implement the EU Law Enforcement Directive, which provides a fundamental right to data protection whenever an individual's data is used by law enforcement agencies.
Why do we need DPA 2018 when we have GDPR?
The DPA 2018 largely mirrors GDPR, but there are some subtle differences.
Although GDPR applies to all EU member states automatically, the regulation does allow states to create their own additional provisions in order to implement it more smoothly into national laws.
In the case of the UK, most data processing will be governed by GDPR, however, some activities related to immigration issues, processing of data by FOI public authorities, and certain national security exemptions are all covered by the Data Protection Act 2018.
For example, under the DPA 2018, the Home Office, and other organisations that involve the processing of immigration data, are allowed to reject access requests to personal data if the organisation believes such action could prejudice “effective immigration control”.
However, this exemption has been challenged by human and digital rights campaigners, with the Open Rights Group and the3million launching a joint legal challenge in January 2019. That challenge, which argued that the exemption relating to immigration data was unlawful, was ultimately rejected by the High Court in October.
There are also a number of provisions under GDPR that are not applied in UK law, which are otherwise set out under the DPA 2018. For example, the legal age for providing consent to process personal data is 16 as a default under GDPR, whereas in the UK this is set at 13. Under the DPA 2018, UK organisations are also allowed to perform a degree of automatic decision making, something which is forbidden under GDPR.
Despite having voted to leave the EU, the UK was bound to any EU legislation enacted until 31 January 2020, including GDPR - this will now be signed into UK law as part of the European Union (Withdrawal) Act 2018.
The DPA 2018 is also required to ensure the smooth flow of data from the EU to the UK now that we have left the bloc. As part of the coming negotiations, the UK will be seeking an 'adequacy agreement', a formal recognition from the EU that as a 'third country' the UK has robust enough data protection laws in place to provide a similar level of data protection to users as that provided under GDPR. Although the UK has said it will authorise the transmission of data to the EU automatically, without an adequacy agreement the UK may find it difficult to receive data legally. While there's every indication that this will happen, the process can only start once the UK leaves the EU, and it's impossible to say how long this negotiation could take.
What's more, any organisation based in the UK (or anywhere else for that matter) that has customers who are European residents will be required to adhere to GDPR rules regardless of whether the UK is in or out of the EU. It makes sense, therefore, to have domestic law that largely mirrors GDPR.
For more information on the various ways in which Brexit may affect GDPR, head to our in-depth guide.
Definition of personal data under DPA 2018
Any information that relates to an identified or an identifiable living person, in that an individual can be identified directly or indirectly through this, is classified as personal data. The information that falls under this category includes names, any identification numbers, location data, online identifiers or any one or more pieces of information specific to them. These would including any information that’s physical physiological, mental, genetic, economic, cultural, or any other data that might be associated with their social identity.
Personal data, in effect, comprises anything that may be used to identify an individual, and in modern times has even extended to include details such a person’s IP address.
What has changed since the DPA 1998
The latest piece of legislation is designed to bring data protection to modern standards, in light of the growth of massive internet companies as well as the way data is collected, processed and monetised in gigantic quantities. The DPA 2018 introduced far more protections for citizens and improved the protections and rights as initially outlined in the previous legislation
Under the new regime, organisations are required to be more transparent about how and why they handle, collect and process the data they do. The collation of data must also be for explicitly stated and legitimate reasons.
There are a number of conditions that businesses must also bear in mind when processing data, including the consent of the data subject, legal obligation, the public interest, vital interest, legitimate interests, among others. One of the greatest changes has been in the way consent is seen in the eyes of the law, with the threshold for consent raised significantly. Under the DPA 2018, user consent must be explicit for the processing of data in relation to specifically outlined purposes, as opposed to blanket consent, as was sought previously.
Greater requirements have also been put on organisations to keep data accurate and up-to-date, but also to immediately remove anything from systems that is inaccurate, on request when such issues are flagged.
Processing data, meanwhile, is now limited entirely to the specific purposes for which it was collected, which differs from how organisations interpreted provisions in the 1998 DPA. Previously, companies could process data in any which way provided it wasn't "excessive" to the original purpose.
Structure of the DPA 2018
The DPA 2018 enforces four distinct data protection frameworks, with each relating to a specific category of data processing.
- Within the scope of GDPR
- Outside the scope of GDPR
- By competent authorities for law enforcement purposes
- By the intelligence services
The act is also split into seven parts, each containing multiple schedules. Following an introductory section and key terms, Part 2 covers various aspects of general processing of personal data, Part 3 covers law enforcement, Part 4 relates to intelligence service processing, Part 5 covers the powers of the Information Commissioner's Office (ICO), Part 6 outlines the scope of enforcement powers, and Part 7 covers additional provisions that do not fall under the previous categories.
Special provisions are set out for law enforcement processing, including the processing of personal data by the police, prosecutors and similar criminal justice bodies. Similar provisions exist for processing by intelligence services, which aim to bring UK standards in line with international standards. The frameworks also ensure the smooth flow of data internationally for the purpose of tackling crime, while ensuring data protections are upheld.
Penalties for a breach of DPA 2018
Like GDPR, the DPA 2018 gives the ICO the power to levy far tougher fines than anything seen in the past. Under the 1998 act, the maximum possible fine was 500,000.
Under the DPA 2018, failing to report a data breach within a 72 hour period can result in a fine of 2% of a company's annual global turnover, or 10 million (9 million), whichever is highest. For the data breach itself, the maximum fine doubles to 4% or 20 million (17 million).
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